Vartuli v Alinta LGA Ltd

[2007] NSWDDT 28

Dust Diseases Tribunal

of New South Wales

CITATION:	Vartuli v Alinta LGA Ltd [2007] NSWDDT 28
PARTIES:	Giuseppe Vartuli (Plaintiff) Alinta LGA Ltd (Defendant)
MATTER NUMBER(S):	6316 of 2006
JUDGMENT OF:	O'Meally P
CATCHWORDS:	Dust Diseases Tribunal :- Asbestosis - Assessment of damages - Damages assessed
DATES OF HEARING:	30, 31 October, 2 November 2007
DATE OF JUDGMENT:	2 November 2007
EX TEMPORE JUDGMENT DATE:	2 November 2007
LEGAL REPRESENTATIVES:	G F Little SC instructed by Turner Freeman appeared for the Plaintiff T J Morahan instructed by Hicksons Lawyers appeared for the Defendant

JUDGMENT:

O'MEALLY P

1. Giuseppe Vartuli seeks provisional damages from Alinta LGA Ltd alleging that as a result of exposure to asbestos in the course of his employment by the Australian Gaslight Company (the Gas Company), as the defendant was called when it employed him, he was exposed to asbestos dust and fibre, and as a consequence has contracted asbestosis. There is no dispute that he suffers asbestosis, but, to my surprise, counsel for the defendant seeks to put in issue that his asbestosis is the result of exposure to asbestos in the course of his employment by the Gas Company.

2. On 15 October 2007 the hearing of this case was fixed for 30 and 31 October. On 15 October 2007 I was informed that the plaintiff was to prove employment, exposure to asbestos and the plaintiff would be required to prove his damages.

3. The basis upon which it is sought now to place liability in issue is that the plaintiff's oral evidence is not in all respects consistent with the matter to which he signed his name on the document called Form 1, which is the statement of particulars required by the Dust Diseases Tribunal Regulation 2007. It is true that there are some inconsistencies between what the plaintiff said in evidence and what he said in the Form 1, which is now PX1. Those inconsistencies, however, do not relate to his exposure to asbestos. The Form 1 was admitted without objection. In answer to the question in that document, “How were you exposed to asbestos?”, the plaintiff replied:

I worked as an assistant plumber with AGL at the Mortdale plant. I handled, removed and fixed asbestos gaskets, applied and removed asbestos insulation from pipes, handled asbestos blankets used by tradesmen for welding purposes, carried and installed asbestos-cement sheets that were broken by plumbers to reach pipes. I also carried out the cleaning of boilers and tanks. I dismantled tanks and removed the asbestos gaskets and asbestos lagging. I swept the removed asbestos lagging fallen from the pipes with a broom. I also swept the roof of the plant, which was made of corrugated asbestos-cement sheets. I did this work every day for about 8 hours a day for the entire duration of my employment with the defendant.

4. The principal area of inconsistency between the plaintiff's evidence and what appears in the Form 1, and which I think generally to be accepted, is the date on which the plaintiff ceased working for the Gas Company. It is a fact that some time in 1971 the plaintiff injured his back at work and has not worked since. He had a laminectomy. At that time he was fifty-one years old, and I think it fair to conclude it to be the case that that injury totally incapacitated him for work. In evidence he said that he had worked well after that and in 1990.

5. I think it important to bear in mind that the plaintiff is now eighty-seven years old. When he gave evidence, he appeared often to be confused. He is Italian by birth and gave his evidence through an Italian interpreter. He migrated to Australia in 1956 at the age of thirty-six. He had little formal education, having attended school until the age of either eight or ten years. Between 1930 and 1938, so he told Dr Breslin, he was engaged in farming and in timber yards as a general hand. Between 1938 and 1945 he was in the Italian army. In 1945 and until 1956 when he came to Australia, he again engaged in agricultural activity and in timber yards.

6. In its reply, the defendant admitted that boilers and steam pipes at the Mortlake gas works were insulated with asbestos products, and that those boilers were constructed in 1954 and 1955. They became operational in November 1955.

7. As has been noted, no objection was taken to the plaintiff's statement of particulars, nor was any cross-examination directed to him suggesting that he was not exposed to asbestos. Mr Morahan has interrupted to inform me that after the reply was filed, the defendant's solicitors wrote to the plaintiff's solicitors seeking to alter what I have just referred to in its reply. I think now is too late to raise that, but in any event, there was no other exposure to asbestos. The plaintiff has asbestosis and I think it fair to assume, particularly in the light of the absence of cross-examination on the plaintiff's assertion in his particulars or any attempt to contradict it, that he was exposed to asbestos in the course of his employment by the gas company.

8. I am satisfied that his admitted asbestosis is the result of exposure to asbestos in the course of his employment by the defendant.

9. It should also be noted that the plaintiff suffers from a number of co-morbidities, some of which are relevant to this claim. Apart from a back injury he has suffered epilepsy, asthma, pneumonia and there is a suggestion also of osteoarthritis. That latter condition is not unexpected in a person of eighty-seven years. He suffers sleep apnoea and was in earlier life a smoker. As a result of smoking, he has obstructive respiratory disease and, as a result of exposure to asbestos, he has restrictive respiratory disease. The consensus of medical opinion is that half of his respiratory disability is due to smoking and half to asbestos exposure.

10. The plaintiff's evidence is that he began to experience respiratory difficulties in the early 1990s. He was referred to Dr Donnelly, who is a respiratory specialist. Dr Donnelly diagnosed and treated him for asthma. Ventolin, Atrovent and Beclafort were prescribed, and physiotherapy undertaken. Investigations carried out in September 1995 revealed only asthma. X-rays were clear, his lungs were under-inflated, but no focal pathology was identified. Dr Donnelly saw him again in December 1995 when he identified crackles in his lung. Crackles are one of the indicia of asbestosis, though not by themselves diagnostic of that condition. Crackles can be caused by a number of lung abnormalities.

11. Dr Donnelly again saw the plaintiff in June 1999. Lung function testing was carried out and a fall in the forced expiratory volume in one second, described in a shorthand way as FEV1, had fallen since the last consultation. Nevertheless, Dr Donnelly was of the view that the lung function tests were “really ... not too bad”. Some crackles at the bases of both lungs were noted. The plaintiff’s counsel emphasises that bilateral crackles were detected in 1999.

12. Professor Breslin gave evidence for the defendant. It was his view that the plaintiff's asbestosis was later in onset than 1999 because he believed unilateral crackles only were heard. Unilateral crackles, as distinct from bilateral crackles, are absent in cases of asbestosis.

13. In December 1993 Dr Donnelly recorded that Mr Vartuli had coarse crackles at the bases, undoubtedly of his lungs, and having seen him in consultation in September 1995 made no comment on the presence of crackles. They were, however, present as noted in December 1995, and again in June 1999.

14. The plaintiff was referred to the care of Dr Anthony Johnson, a respiratory physician with considerable experience in cases of asbestos disease. Dr Johnson first saw the plaintiff in 2003 when he was admitted to Liverpool Hospital with pneumonia. In a report of 4 January 2007, Dr Johnson noted that CT studies of the chest of 8 March 2006 showed calcified pleural plaques in both mid zones, pleural thickening and interstitial lung disease. Pleural plaques are, of course, evidence of prior exposure to asbestos and, presumably, the interstitial lung disease was asbestosis. There is no reference to and no indication of what was shown by earlier X-radiological studies.

15. The plaintiff is now more or less housebound. He is on oxygen provided by an oxygen concentrator, a machine which extracts nitrogen from the air so that pure, or almost pure, oxygen is delivered through the machine. He uses a walking frame and a back support. In his earlier and active days he maintained a vegetable garden in the back yard of his home and attended the garden and mowed its lawns. Much of what he previously did is now beyond him, in fact the great bulk of it is beyond him. He spends his days in a chair and uses a walking frame. Physical activity, including dressing and moving about the house is difficult and renders him short of breath.

16. There is a question whether his asbestosis will progress. Professor Breslin is of the view that it will not. Dr Johnson, on the other hand, who by reason of the fact that he has been his treating doctor, has seen him many more times and far more regularly than Professor Breslin, is of the view that his asbestosis will progress and he is confirmed in this view by reason of the fact that the plaintiff's respiratory condition has deteriorated during the years that he has been Dr Johnson's patient.

17. The fact remains, however, that half of the plaintiff's respiratory disability is occasioned by non-compensible factors so that general damages must be discounted or reduced to take account of that fact. One must also bear in mind that part of the plaintiff's limited ability to mobilise and to engage in activity is occasioned by other disorders including the effects of age.

18. Doing the best I can to do justice between the parties, I think a sum appropriate to compensate the plaintiff for the consequences, the discomfort and restrictions occasioned by asbestos disease and taking into account the fact that his respiratory disease occasioned by asbestos exposure will deteriorate is $65,000.

19. I have noted that Dr Johnson first saw the plaintiff in 2003, he then treated him for pneumonia. Relying upon his memory, not having a note of it, Dr Johnson gave evidence that he applied for home oxygen, as best he could remember, in 2004. The plaintiff first used home oxygen to ameliorate the effects of sleep apnoea. Though Dr Johnson had been treating the plaintiff since 2003, it was not, seemingly, until 2005 that he contemplated an asbestos disease. That diagnosis presumably was made principally on the results of lung function testing. In any event, on 3 February 2005, Dr Johnson wrote to the Dust Diseases Board in respect of the plaintiff in answer to a request to provide a report.

20. These matters are relevant in determining what proportion or what part of the general damages should be allocated to the past. In undertaking this exercise, it is appropriate to bear in mind that the probability is that the plaintiff's condition will deteriorate, and that early respiratory symptoms were probably unrelated to asbestos disease.

21. Of the $65,000 for general damages it is my view that $30,000 should be allocated to the past.

22. Professor Breslin is of the view that the plaintiff's life will not be shortened by his asbestos disease. Dr Johnson is of the contrary view. The life expectancy of an eighty-seven years old Australian male, according to the most recent tables, is something slightly in excess of five years. Dr Johnson is of the view that the plaintiff's life probably will be shortened by something in the order of two to three years. I think the sum appropriate to allow the plaintiff for loss of expectation of life is $2,000.00.

23. A claim is made for past and future Griffiths v Kerkemeyer expenses. It is difficult, if not impossible, to calculate Griffiths v Kerkemeyer damages in a manner that is in any way accurate. At best, estimates can be made on impressions of what the future will bring. In the absence of precise diary notes, and they are seldom if ever kept, honest recollection is all that can be relied upon in respect of the past. The evidence of the plaintiff's wife is that in 1995 she began taking over the domestic chores in the house. Other evidence establishes that around about 2000 the plaintiff's wife and his son Giovanni began to look after the garden and carry out the tasks there. Whether that event was occasioned by the effects of asbestos disease or smoking together with co-morbidities, is doubtful.

24. On the one hand, there is evidence of Dr Johnson, which would seem to suggest that no diagnosis of an asbestos disorder was made until 2005. Dr Johnson is a consultant to the Dust Diseases Board, and, like many other doctors who practice in the thoracic field, quick to refer patients to the Board when it is believed they are entitled to the benefits of the Dust Diseases Workers Compensation legislation.

25. I accept that the plaintiff began to experience respiratory symptoms in the 1990s, but I am not satisfied that his asbestos disease caused restriction of activity until Dr Johnson made the reference to the Dust Diseases Board in 2005.

26. Doing the best I can on the evidence as it is before me, I think it appropriate to allow Griffiths v Kerkemeyer expenses from a date, which I shall arbitrarily fix as 1 January 2005, for a period of five hours per day. There were periods between 1995 and 2005 when service was provided, which I would have allowed at the rate of one hour per day between 1995 and 1999, and at the rate of one and a half hours per day between 1999 and 2003, and at the rate of two hours per day between 2003 and 2005. But having come to the view upon referring for the second time to Dr Johnson's report that care should be allowed from 2005, I propose not to make allowances between 1995 and 2005. The five hours a day that should be allowed thereafter is referable only to respiratory disease and has taken into account the fact that whilst more care might be provided the need for such care arise from non-compensable disorders.

27. The claim hereafter is for full-time care. I do not believe that such a need has been established. Again one has to be arbitrary about this and apply a broad brush. I think for the next twelve months it is fair to allow a sum of eight hours per day.

28. Distasteful though the task is I am required to determine a presumed date of death. I think the evidence would put it at something in the order of three years from today. Again adopting the same broad brush approach, I think it appropriate to allow for assistance at the rate of ten hours a day for the year following the first and for sixteen hours a day for the year following that. Calculations may be made and handed to me in due course.

29. Otherwise the plaintiff is entitled to general damages of $65,000.00, $2,000.00 for loss of expectation of life and for the sums yet to be calculated for Griffiths v Kerkemeyer expenses both past and future.

30. I order that the plaintiff may claim further damages pursuant to s 11A of the Dust Diseases Tribunal Act 1989 should he develop any of the following: asbestos related lung cancer, pleural mesothelioma, peritoneal mesothelioma, asbestos induced carcinoma or asbestos induced carcinoma of any other organ.

31. There will be verdict and judgment for the plaintiff for $446,339.45. As to all but $68,719.45 I grant a stay until further order of the Court.

32. Pursuant to s 13(6) of the Dust Disease Tribunal Act I grant leave to the defendant to apply for reconsideration of the amount awarded for Griffiths v Kerkemeyer expenses.

33. The defendant will pay the plaintiff's costs as agreed or assessed.

Mr G F Little, SC instructed by Turner Freeman appeared for the Plaintiff

Mr T J Morahan instructed by Hicksons Lawyers appeared for the Defendant